Citation Nr: 0126571
Decision Date: 11/20/01 Archive Date: 11/27/01
DOCKET NO. 00-11 099 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to a retroactive increased rating in excess
of 10 percent for a low back disorder from October 4, 1991
through March 28, 1993.
2. Entitlement to a retroactive increased rating in excess
of 20 percent for a low back disorder from March 29, 1993
through August 14, 1994.
WITNESS AT HEARINGS ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
R. Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1991 to
October 1991.
This appeal comes before the Board of Veterans' Appeals
(Board) from a January 1999 rating decision of a VA Regional
Office (RO) in Roanoke, Virginia. In July 1999, the veteran
testified before a Hearing Officer at the VARO Roanoke. In
August 2001, the veteran testified before the undersigned
during a Board hearing in Washington, D.C. Transcripts of
both hearings are of record. The issues noted on the title
page of this decision were clarified as being the correct
issues at the August 2001 Board hearing.
REMAND
In reviewing the record, the Board notes that the veteran
filed her original claim for service connection for a back
disorder in September 1991. She was service connected for
the disability that same month and awarded a 10 percent
rating, effective from October 4, 1991. This rating action
was not the subject of a timely notice of disagreement.
In a rating action in May 1993, the RO increased the
veteran's back disability to 20 percent, effective from March
29, 1993. This rating action was not the subject of a timely
notice of disagreement.
In August 1994, the veteran underwent a left L4-5 diskectomy
at the VAMC Richmond, Virginia.
In November 1994, the RO awarded the veteran a temporary,
total, post-surgical, convalescent rating based on her August
1994 diskectomy. The effective date of the award was from
August 15, 1994 through October 31, 1994.
The veteran's claims for retroactive increased ratings
involve periods prior to the August 1994 low back surgery.
Inasmuch as the above noted, pertinent rating actions were
not timely appealed, the issues on appeal may only be
addressed on the basis of clear and unmistakable error (CUE).
The veteran stated at the August 2001 Board hearing that she
was predicating her claims on allegations of CUE in the
pertinent, unappealed rating actions.
With respect to development of the CUE issues, the Board is
aware that, VA adjudicators are deemed to have constructive
notice of the records of VA treatment. See Dunn v. West, 11
Vet. App. 462 (1998); see also Bell v. Derwinski, 2 Vet. App.
611 (1992) and VAOPGCPREC 12-95 (May 10, 1995). The veteran
has testified that she received medical treatment for her
back on a regular basis at the VAMC Richmond, beginning in
April 1993. Besides the hospital summary for her diskectomy,
records associated with her treatment at the VAMC Richmond
between April 1993 and August 1994 are not of record.
Furthermore, the veteran has also testified that she received
medical treatment at the VAMC Clarksburg and VAMC Beckley,
beginning in 1992. While there are limited medical records
from both facilities in the claims file, the Board is
uncertain, based on the veteran's testimony, whether there
are additional medical records which need to be obtained.
Thus, inasmuch as the identified VA records are not presently
available for appellate consideration, and would appear to be
relevant to the veteran's claims for CUE, a remand is
required for further development. 38 C.F.R. § 19.9 (2000).
The veteran's appeal is REMANDED to the RO for the following:
1. The RO should obtain the veteran's
complete original VA hospital clinical
records folder and the complete original
VA outpatient treatment records folder for
the period from October 1991 through
August 1994, and incorporate them into the
claims folder.
2. Following completion of the foregoing,
the RO must review the claims folder and
ensure that the aforementioned development
action has been conducted and completed in
full. If any required action is
incomplete, appropriate corrective action
is to be implemented.
3. Thereafter, the RO should again
consider the veteran's claims on the basis
of the above noted allegations of clear an
unmistakable error. If action taken
remains adverse to the veteran, she should
be furnished a supplemental statement of
the case (SSOC) concerning all evidence
added to the record since the last SSOC.
Thereafter, the veteran should be given an
opportunity to respond. The case should
then be returned to the Board for further
appellate consideration, if otherwise in
order.
The veteran need take no action unless otherwise notified;
however, she is advised that she has the right to submit
additional evidence and argument on the matters that have
been remanded to the regional office. Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).